Hunter Investments Pty Ltd (Migration)

Hunter Investments Pty Ltd (Migration) [2023] AATA 1416 (24 April 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Hunter Investments Pty Ltd
REPRESENTATIVE:  Mrs Maree Elliott (MARN: 9902416)
CASE NUMBER:  1927580
HOME AFFAIRS REFERENCE(S):        BCC2019/3946526
MEMBER:Warren Stooke AM
DATE:24 April 2023
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal sets aside the decision not to approve the nomination and substitutes a decision that the nomination is approved.

Statement made on 24 April 2023 at 4:45pm

CATCHWORDS
MIGRATION – nomination – applicant is a temporary activities sponsor – Tribunal is satisfied that the nominating business is providing genuine training for the nominee – Locksmith – ANZSCO Code: 323313 – genuine training opportunity – No adverse information known to Immigration – no adverse consequences for Australians – decision under review set aside

LEGISLATION
Migration Act 1958, ss 245AR, 140GB
Migration Regulations 1994, rr 1.13, 2.72, 2.73
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 12 September 2019 to refuse to approve the applicant’s nomination under s 140GB of the Migration Act 1958 (Cth) (the Act) and reg 2.72A of the Migration Regulations 1994 (Cth) (the Regulations).
The applicant applied for approval on 9 September 2019. A nomination of a program of occupational training in relation to a Subclass 407 visa is made under s 140GB of the Act and reg 2.72A of the Regulations. Regulation 2.72A prescribes criteria that must be satisfied for the Minister to approve a nomination by a person. These criteria are extracted in the attachment to this decision.
The program of occupational training nominated in this case is for a Locksmith. The delegate decided not to approve the nomination on the basis that the applicant did not satisfy Regulation 2.7A(16) and 2.7A(16) because the delegate considered that the nomination application did not meet the prescribed criteria for approval of the nomination.
The applicant appeared before the Tribunal on 28 February 2023 to give evidence and present arguments. The Tribunal also received oral evidence from Gary O’Sullivan, the nominee for the Training visa.
The applicant was represented in relation to the review. The representative attended the Tribunal hearing.
For the following reasons, the Tribunal has decided to set aside the decision under review and substitute a decision approving the nomination.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in the present case is whether the applicant meets the criteria for approval of the nomination. The Tribunal must approve the nomination if the applicant is an approved work sponsor and meets the requirements in reg 2.72A: s 140GB(2).
Nominator is a sponsor – reg 2.72A(3)
Regulation 2.72A(3) requires that the applicant is a temporary activities sponsor.
The Department of Home Affairs provided the applicant with an approved sponsorship on 6 August 2019 for the period from 6 August 2019 to 6 August 2024.
For these reasons reg 2.72A(3) is met.
Nomination made in accordance with reg 2.73A – reg 2.72A(4)
Regulation 2.72A(4) requires that the applicant made the nomination in accordance with reg 2.73A. Regulation 2.73A states that the person nominating the program of occupational training may nominate the program in accordance with a process specified in a legislative instrument. The relevant instrument, LIN 19/050 for the nominated occupation of Locksmith – ANZSCO Code: 323313 at item 185 in the Medium to Long Term skills list in the Register of Instruments: Business Visas, sets out various requirements such as the form to be used to make the nomination and the fee which must accompany the nomination.
Given the above findings, the Tribunal is satisfied that the application was made in accordance with reg 2.73A and that reg 2.72A(4) is met.
Participation in the nominated program – reg 2.72A(5)
Regulation 2.72A(5) requires that the nominee will participate in the nominated program.
The applicant provided evidence to the Tribunal that the nominee has completed a Certificate III in Locksmithing and will undertake formal training in accordance with a submitted plan for CCTV and Alarm Installations and Maintenance through on-the-job training under the supervision of qualified tradesman, Roman Schmidt (Refer Attachment 1 – In-House Training Plan for Gary O'Sullivan: CCTV and Alarm Installation and Maintenance), who will undertake assessments during the training period.
The Tribunal is satisfied that the nominee has a Certificate III in Locksmithing and that the proposed training will be comprehensively administered and assessed by an experienced tradesman.
For these reasons, reg 2.72A(5) is met.
Secondary sponsored persons – reg 2.72A(6)
Regulation 2.72A(6) applies where the nominee holds a visa, and requires that the sponsor has listed on the nomination each secondary sponsored person who holds the same visa as the nominee on the basis of the secondary sponsored person’s relationship to the nominee. In this case, the nominee does not hold a visa and therefore this requirement does not apply.
For these reasons, reg 2.72(6) does not apply.
Provision of information about proposed employers and location of work (reg 2.72A(8))
Regulation 2.72A(8) requires that the sponsor has provided certain information, including:
·information that identifies the employer or employers in relation to the nominated program, including the location and contact details of each employer, and if the sponsor and employer are not the same person – the relationship between the sponsor and the employer: reg 2.72A(8)(a). If undertaking the nominated program is a volunteer role, ‘employer’ includes the person or organisation responsible for the tasks to be carried out as part of the nominated program: reg 2.72A(9);
·information that identifies the location or locations where the nominated program will be carried out: reg 2.72A(8)(b); and
·information that identifies each member of the family unit of the nominee who holds, or proposes to apply for, the same visa as the nominee on the basis of satisfying the secondary criteria: reg 2.72A(8)(c).
Hunter Investments Pty Ltd is a discretionary trust that is trading as Shaine Hunter Locksmiths in Mount Isa and is Registered with ASIC – ABN 92 297 517 995.
The nominating employer entered into a training contract with the nominee on 28 May 2018 and the nominee completed initial training to gain a Certificate III in Locksmithing on the basis of 12 core and 22 Electriive modules undertaken through and apprenticeship contract that included formal tuition through Registration with Queensland TAFE between 15 April 2019 and 10 May 2019.
The nominee was awarded an initial Trade Certificate completion notice from the Department of Small Business and Training (Qld) on 1 November 2022 and will commence a two year training period in CCTV and Alarm Installations and Maintenance with the nominating employer.
For these reasons, reg 2.72A(8) is met.
Certification about conduct that contravenes s 245AR(1) – reg 2.72A(10)
Regulation 2.72A(10) requires that the sponsor has certified, in writing and as part of the nomination, whether or not the sponsor has engaged in conduct in relation to the nomination that constitutes a contravention of s 245AR(1) of the Act.
The application lodged by the applicant on 9 August 2019 contained the following declaration:
“The applicant certifies that they have not engaged in conduct in relation to this nomination that constitutes a contravention of subsection 245AR(1) of the Migration Act 1958.”
The applicant provided a response to the declaration of ‘yes’.
For these reasons, reg 2.72A(10) is met.
No adverse information – reg 2.72A(11)
Regulation 2.72A(11) requires that either there is no adverse information known to Immigration about the sponsor or a person associated with the sponsor, or it is reasonable to disregard any such information. ‘Adverse information’ and ‘associated with’ have the meanings given in regs 1.13A and 1.13B.
The Tribunal is satisfied that there is no adverse information known to Immigration or the Tribunal about the nominator or a person associated with the nominator.
For these reasons, reg 2.72A(11) is met.
Occupational training will be provided directly by sponsor – reg 2.72A(12)
Regulation 2.72A(12) requires that:
·the occupational training will be provided directly by the sponsor; or
·the sponsor is supported by a Commonwealth agency, and the agency has provided a letter endorsing the arrangement for the provision of the occupational training; or
·the sponsor is specified in a legislative instrument; or
·the occupational training will be provided in circumstances specified in a legislative instrument.
On the basis of the evidence provided, the Tribunal is satisfied that the nominating business is providing genuine training for the nominee as a Locksmith – ANZSCO Code: 323313 and that the extended training in CCTV and Alarm Installations and Maintenance is consistent with the extended training required for the trade and will be professionally delivered and assessed by a trade qualified supervisor.
For these reasons, reg 2.72A(12) is met.
Activities will have no adverse consequences for Australians – reg 2.72A(13)
Regulation 2.72A(13) requires that the sponsor does not engage in, or intend to engage in, activities that will have adverse consequences for employment or training opportunities, or conditions of employment, for Australian citizens or Australian permanent residents.
The applicant provided evidence at hearing that the region of Mt Isa has an acute shortage of tradesmen and that prior Australians have either abandoned the trade prior to completing training or have not applied for the position. As such, it was explained to Tribunal that the nominee is willing to participate in the trade training, as has been demonstrated by the completion of Certificate III in Locksmithing and that the continued training under a 407 visa approved training plan will complete the trade training required to meet the needs of the nominee.
For these reasons, reg 2.72A(13) is met.
Functional English – reg 2.72A(14)
Regulation 2.72A(14) requires that the nominee has functional English. ‘Functional English’ is defined in s 5(2) of the Act, which states that a person has functional English at a particular time if he or she passes a test that is approved in writing by the Minister and is conducted by a person or organisation approved by the Minister (s 5(2)(a)), or the person provides prescribed evidence of the person’s English language proficiency (s 5(2)(b)). There are no approved tests, persons or organisations for s 5(2)(a). For s 5(2)(b), evidence is prescribed by reg 5.17. Regulation 5.17 prescribes evidence such as the nominee holding an award that required at least two years of full-time study or training conducted in English, and evidence specified by the Minister in an instrument in writing.
As the nominee is a citizen of Ireland and English is his first language, the provisions of reg 2.72A(14) are met.
For these reasons, reg 2.72A(14) is met.
Purpose of occupational training: reg 2.72B – reg 2.72A(15)
Regulation 2.72A(15) requires that reg 2.72B applies to the nomination. Regulation 2.72B states that it applies if any of its subregulations apply. Each subregulation outlines a purpose for occupational training and includes various requirements which must be met. In this case, the applicant claims that reg 2.72B(2) applies.
The Tribunal is satisfied that the training is occupational training and workplace based (reg 2.72B(2)(d)); and the nominee has appropriate qualifications and experience to undertake the occupational training (reg 2.72B(2)(e)).
Regulation 2.72B(2) applies if:
·the occupational training is necessary for the nominee to obtain registration, membership or licensing in Australia, or in the home country of the nominee, in relation to the occupation of the nominee (reg 2.72B(2)(a)); and
·the registration, membership or licensing is required in order for the nominee to be employed in the occupation of the nominee in Australia or in the home country of the nominee (reg 2.72B(2)(b)); and
·the duration of the occupational training is necessary for the nominee to obtain registration, membership or licensing in Australia, or in the home country of the nominee, in relation to the occupation of the nominee, taking into account the prior experience of the nominee (reg 2.72B(2)(c)); and
·the occupational training is workplace based (reg 2.72B(2)(d)); and
·the nominee has appropriate qualifications and experience to undertake the occupational training (reg 2.72B(2)(e)).
Regulation 2.72B(3) applies if:
·the occupational training is a structured workplace training program; and specifically tailored to the training needs of the nominee; and of a duration that meets the specific training needs of the nominee (reg 2.72B(3)(a)); and
·the occupational training is in relation to an occupation specified, with its corresponding 6-digit code, by the Minister in a legislative instrument (reg 2.72B(3)(b)); and
·the occupation is applicable to the nominee in accordance with the specification of the occupation (reg 2.72B(3)(ba)); and
·the nominee has the equivalent of at least 12 months of full-time experience in the occupation to which the occupational training relates in the 24 months immediately preceding the time of nomination (reg 2.72B(3)(c)).
The Tribunal is satisfied that the training is occupational training and is in relation to an occupation specified, with its corresponding 6-digit code ANZSCO Code: 323312, by the Minister in a legislative instrument (reg 2.72B(3)(b)); and the occupation is applicable to the nominee in accordance with the specification of the occupation (reg 2.72B(3)(ba))
For these reasons, the Tribunal is satisfied that reg 2.72B(2) and 2.72B(3) applies. Accordingly, reg 2.72A(15) is met.
Genuine training opportunity – reg 2.72A(16)
Regulation 2.72A(16) requires that the nominated program is offered as a genuine training opportunity for a purpose referred to in the subregulation of reg 2.72B that applies. In this case, reg 2.72B(2) and 2.72B(3) applies.
The Tribunal is satisfied on the evidence that the nominating employer provides a professional locksmithing; CCTV and Alarm Installation and Maintenance to Mt Isa mining and commercial clients.
Accordingly the Tribunal is satisfied that the nominated program is offered as a genuine training opportunity for a purpose referred to in r.2.72B, in this case occupational training to enhance skills.
For these reasons, reg 2.72A(16) is met.
Based on the findings above, the Tribunal is satisfied that the applicant meets the requirements for approval of the nomination of the program of occupational training.
Overall, the Tribunal is satisfied that a 407 Training Visa should be reconsidered by the Minister for a period of two years to enable completion of the training provided in evidence.
DECISION
The Tribunal sets aside the decision not to approve the nomination and substitutes a decision that the nomination is approved.
Warren Stooke AM
Member

ATTACHMENT 1
IN-HOUSE TRAINING PLAN
FOR GARY O'SULLIVAN
CCTV AND ALARM INSTALLATION
AND MAINTENANCE
The SHL training in CCTV and alarm installation and maintenance will cover
–Selecting the appropriate CCTV option for a customers needs.
–Advising customer on locations of camera's and types of camera's.
–Wiring the installation to meet all australian standards.
–Selection of appropriate fixing devices.
–Network analysis, and identifing appropriate addressing.
–Programming camera's and recorders to meet customers needs.
–Configuring PC's and smartphones to interface with CCTV system.
–Indentifing risks and hazards in dangerous locations (confined spaces, roof cavities, etc).
–Selecting EOL devices as per customer requirements.
–Configuring alarm to best suit the application.
–Understanding the importance of the highest personal integrity in a security situation.
SECTION 1 – CCTV CAMERA TYPES
The selection of the correct type of camera, to meet the specific needs of a job is critical, the camera's available on the modern market are extremey varied. Camera's can include functions such as fire detection, body heat detection (detects fevers) facial recognition, deterance (sirens and voice warnings), vehicle detection, number plate recognition, automation features and much more. As part of the training, Gary will be taught the pro's and con's of each camera type, the situations they should be used, and the situations they shouldn't be.
SECTION 2 – LEGAL OBLIGATIONS
As security installers, we have to hold ourselves above reproach. Our work, and advice provides our customers with personal security and piece of mind. With out the customers complete trust, and faith in our work, we cannot do our job. As such Gary will constantly be reminded, that in his professional life AND personal life, he must always be vigilant.
As part of the legal side of our trade, we could face camera's towards sensitive areas accidently (neighbours yards, schools, etc). This is another thing to be careful about, while planning the job. Some camera's can record voice, and this can be a legal issue if used in an incorrect setting.
Gary will be taught the nuances of legal requirements and Australian standards.
SECTION 3 – NETWORKING
In todays world of security, remote access through the internet is not only possible but expected. It is critical to understand how to program, alarm equiptment, CCTV equiptment, routers, modems, switchgear, etc to work together, allowing remote access function, and event delivery.
Gary will be taught to examine a network, figure out a network range and vlan to use, making the correct decisions to not adversly impact the customers operations, and functionality.
SECTION 4 – CABLING
Once it comes times to start the physical work, knowledge of Australian cabling standards, fire code, building code, and safety requirements is critical. Gary must learn not only how to do our job, but also what he maybe impacting for other trades in the building industry. Fire walls are a common, and important part of building construction, they help prevent the spread of fire through the roofspace of a building. As cablers, we often need to get cable through these obstructions. Gary will need to be able to identify a firewall, follow relevant regulation in making a penetration, and repair the damage back to fire code standars after the job is complete. Gary will need to learn how a building is constructed so he can safely move through roof spaces, by identify bearers, and trusses, and other safe places to stand, while avoiding battens, and nogs. There are also requirements to support our cabling as well as maintaining seperation from other services.
SECTION 5 – CUSTOMER DEVICES
As part of our job, we are expected to configure customer devices to interface with our equiptment, this means we must learn to use every kind of phone/tablet/computer available, and the different software required to be installed on each. This can be challenging as there is a large selection. Gary will be taught how to gain access to resources that contain this information, and how to locate and install the required software. People rely heavily on their personal devices in todays world, and as part of this section Gary will be taught to respect customers privacy, and personal space when handling their device.
SECTION 6 – EOL DEVICES
Product knowledge is critical before beginning to plan a job. A security installer must know what is available, without knowedge of a product, an installer will not know to install it. As such, Gary will be exposed to every kind of product available to our industry – whether we use it or not – so he can include them in his decision making process when designing a security solution for the end user. End of line devices are things such as, but not limited to
–motion sensors
–glass break detectors
–heat sensors
–smoke detectors
–reed switches
–break beams
–pressure switches
–gas detection
–flow switches
As part of the EOL knowledge, Gary will also be taught about the kinds of things these detectors can trigger, the beginning of automation solutions such as
–motion detection to activate lighting
–notifications on a mobile device
–controlling doors
–controlling climate control devices
–controlling irrigation
–and much more
TRAINING SCHEDULE
We believe to gain a full understanding of all the above listed requirements, Gary will need 1 day per week working on the electronic security side of the industry for at least 2 years to reach a level where he can confidently, and professionally approach, plan, advice, program, and successfully complete an electronic security solution without supervision, or advice. This timeline is at a minimum, based on competency, not a fixed completion date.
ATTACHMENT 2 - EXTRACTS FROM THE MIGRATION REGULATIONS 1994
2.72A Criteria for approval of nomination—Subclass 407 (Training) visa
(1)This regulation applies to a person (the sponsor):
(a)who is, or has applied to be, a temporary activities sponsor; and
(b)who has nominated, under paragraph 140GB(1)(b) of the Act, a program of occupational training (the nominated program) in relation to a holder of, or an applicant or proposed applicant for, a Subclass 407 (Training) visa (the nominee).
(2)For the purposes of subsection 140GB(2) of the Act, the criteria that must be satisfied for the Minister to approve the nomination are the criteria set out in this regulation.
(3)The Minister is satisfied that the sponsor is a temporary activities sponsor.
(4)The Minister is satisfied that the sponsor made the nomination in accordance with regulation 2.73A.
(5)The Minister is satisfied that the nominee will participate in the nominated program.
(6)If the nominee holds a visa, the Minister is satisfied that the sponsor has listed on the nomination each secondary sponsored person who holds the same visa as the nominee on the basis of the secondary sponsored person’s relationship to the nominee.
(7)However, the Minister may disregard the fact that one or more secondary sponsored persons are not listed on the nomination if the Minister is satisfied that it is reasonable in the circumstances to do so.
(8)The Minister is satisfied that the sponsor has provided the following:
(a)information that identifies the employer or employers in relation to the nominated program, including:
(i)      the location and contact details of each employer; and
(ii)     if the sponsor and the employer are not the same person—the relationship between the sponsor and the employer;
(b)information that identifies the location or locations where the nominated program will be carried out;
(c)information that identifies each member of the family unit of the nominee who holds, or proposes to apply for, the same visa as the nominee on the basis of satisfying the secondary criteria.
(9)For the purposes of paragraph (8)(a), if undertaking the nominated program is a volunteer role (within the meaning given by subregulation 2.57(5)), employer includes the person or organisation responsible for the tasks to be carried out as part of the nominated program.
(10)The Minister is satisfied that the sponsor has certified, in writing and as part of the nomination, whether or not the sponsor has engaged in conduct in relation to the nomination that constitutes a contravention of subsection 245AR(1) of the Act.
(11)The Minister is satisfied that:
(a)there is no adverse information known to Immigration about the sponsor or a person associated with the sponsor; or
(b)if any adverse information is known to Immigration about the sponsor or a person associated with the sponsor—it is reasonable to disregard the information.
(12)The Minister is satisfied that:
(a)the occupational training will be provided directly by the sponsor; or
(b)the sponsor is supported by a Commonwealth agency, and the Commonwealth agency has provided a letter endorsing the arrangement for the provision of the occupational training; or
(c)the sponsor is specified in a legislative instrument made by the Minister for the purposes of this paragraph; or
(d)the occupational training will be provided in circumstances specified in a legislative instrument made by the Minister for the purposes of this paragraph.
(13)The Minister is satisfied that the sponsor does not engage in, or intend to engage in, activities that will have adverse consequences for employment or training opportunities, or conditions of employment, for Australian citizens or Australian permanent residents.
(14)The Minister is satisfied that the nominee has functional English.
Note:      For functional English, see subsection 5(2) of the Act.
(15)Regulation 2.72B applies to the nomination.
(16)The Minister is satisfied that the nominated program is offered as a genuine training opportunity for a purpose referred to in the subregulation of regulation 2.72B that applies.

[2023] AATA 1416

24 April 2023

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